The Italian Pirate Bay Case: What did the court order and why?

On December 23, 2009, the Italian Supreme Court released its ruling in a case involving criminal charges against the operators of the Swedish website, Pirate Bay. The case raised a number of interesting issues including whether, under Italian criminal law, the operation of a BiTtorrent site is illegal when the operators get a financial return such as by showing advertising on the site; the seizure of a p2p file sharing website is possible; a court can grant injunctive relief requiring ISPs to block access to a site that facilitates infringement; and the criminal law extends to online digital piracy that in part takes place abroad. In line with evolving precedents, the Italian Supreme court answered all of these questions in the affirmative.

The case involved criminal charges against Sunde Kolmisoppi Peter, Lundstrom Carl, Nelj Frederik and Svartholm Goyyfrid, all of whom were accused of committing crimes under various articles of the Italian criminal code. In the proceeding the Public Prosecutors brought motions to the court to order a preventive seizure of the www.thepiratebaybav.org website and to require Italy’s ISPs to deny access to the website and its alias and domain names pointing to the website. In granting the requested relief, the Italian Supreme court made the following important holdings:

A high number of Italian visitors to the website had downloaded copyrighted works without permission.

There was prima facie evidence of copyrighted works being transmitted by site users via the Internet.

P2P file sharing could be a criminal offense. Any person uploading a work engages in the unauthorized distribution of copyrighted materials via the Internet.

The distribution of works for profit purposes such as making advertising available on a website can also be a criminal offense.

The operator of a website would not be liable for the commission of an offense, if the operator in no way participated in the file sharing. For example, if the website acts only as a passive carrier and only provides a means of telecommunication, the website owner would not have participated in the crime. (Sound like the Tariff 22 case to anyone?)

However, if the actions of the website operator are not passive and neutral, liability may be imposed if the carrier participates in the crime. Examples of participation include categorizing information received from users, providing passwords to users, and otherwise providing any form of aid. In the BiTtorrent context, the categorization and tracking process, which is essential for file transfer (from uploading users to downloading users) which is carried out by the site operator makes the operator liable for having participated in the crime.

Even in cases of participation from abroad, an Italian court still has jurisdiction if part of the misconduct was committed in Italy. P2P technology may decentralize the uploading (distribution of the work via the Internet) but does not decentralize the unlawfulness of unauthorized distribution of copyrighted works. The unauthorized distribution of copyrighted works takes place when the works are made available to end users. Considering the number of users within Italy who use the Pirate Bay site, there is criminal conduct taking place when the Italian based user receives the file or files containing copyrighted work. Hence, part of the unlawful act is committed in Italy.

The fact that the site system hardware is not located in Italy does not prevent Italian criminal jurisdiction to make a preventive seizure order according to article 6 of the Italian criminal code.

Given the magnitude of the infringement made possible by the Pirate Bay site, there were strong grounds to make an order for precautionary measures to prohibit the continuation of the unlawful activity.

The authorities may require, including by way of an injunction, ISPs to remove or prevent any copyright violations. ISPs are not under a duty to verify that the information they transmit does not constitute an act of copyright infringement. But ISPs are bound to report any illicit activity that they may know, and provide information about the identity of the perpetrator of the offence. Also, the authorities may require ISPs to deny access to illicit content. Authorities have full powers to require ISPs to deny access to the Internet in order to prevent the continued perpetration of crime.

The principle of “proportionality” must be satisfied. That is, any restriction to access must be implemented in a manner tailored to serve the interests of detection and prosecution of crime.

The decision of the Italian court is an important one. In keeping with latest developments in cases in other jurisdictions such as the Swedish decision involving Pirate Bay, the Dutch decision involving Mininova, and the US decision involving Isohunt, the court held that the operators of a BitTorrent site can be liable for facilitating infringement-in this case by aiding infringement. Further, as in the Isohunt case, the fact that the site was located outside of jurisdiction of the court was not a bar to enforcing national laws.

The case is especially interesting in view of the holdings related to granting preventative relief and to ordering ISPs to restrict access to the Pirate Bay site. Other EU courts have made similar orders requiring ISPs to prevent access to infringing sites using Article 8(3) of the EU Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society. The instant case shows that blocking orders can also be made in a criminal context, where the applicable law permits it.

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